The EB-5 employment-creation immigrant investor visa category continues to transcend its chutes-and-ladders early history. This 24-year-old program -- like many young adults of the same era -- seems at last to be maturing in healthy ways. Foreign investors have become more savvy. Regulators are more attuned to the need for greater investor protection, as well as clear, consistently enforced rules and predictable adjudicative outcomes (including swift justice for law violators). Seasoned dealmakers and developers, accustomed to raising substantial project capital from private equity markets, are now entering the field and bringing with them a set of industry practices that include robust law compliance as an inherent element of the fundraising business model. Yet one practice lingers. Immigration lawyers continue to wear too many hats. The Bible and law school teach that serving two (or more) masters is a recipe for trouble. So why then do so many reputable immigration lawyers think they can simultaneously represent the investor, the regional center and the project developers all in the same EB-5 transaction (while possibly also receiving finder’s or consulting fees on the side for procuring investors)? The answers are only partly governmental. U.S. Citizenship and Immigration Services (USCIS) and the State Department perpetuate the practice by allowing only one lawyer to submit a Form G-28 (notice of entry of appearance of attorney) in any given EB-5 benefits request, whether that be the request for approval of a regional center (Form I-924), the request for amendment of a regional center designation (Form I-924A), the EB-5 investor’s petition seeking classification as a conditional permanent resident (Form I-526), the application to register permanent residence or adjust status to conditional permanent resident (Form I-485), the immigrant visa application (Form DS-230), or the investor’s petition to remove conditions on residence (Form I-829). This governmental practice is unhealthy and unnatural. Most federal agencies outside of the immigration world recognize that parties with distinct legal interests to protect deserve to be heard and represented by the respective legal counsel of their choice. The Securities and Exchange Commission, for example, would never mandate or likely countenance that an investor’s counsel represent the interests of an issuer of securities, or vice-versa. Indeed, the adversarial system of justice is founded on the principle that the truth will out and justice will best prevail when conflicts of interest are minimized and each party to a controversy exercises the right to present evidence and legal argument in support of a particular position asserted before a neutral fact-finder/judge determining the truth and applying the law. Not so, the immigration bureaucracy. As I’ve blogged before, the government needs to stop forcing members of the bar and the several “publics” they serve to rely on only one lawyer to carry the legal water in a single immigration case where several distinct interests hang in the balance. But archaic immigration rules don’t really explain why EB-5 lawyers practicing immigration law too often tend to represent multiple parties. Immigration attorneys can readily serve distinct parties in an EB-5 case quite well by developing lawful work-arounds through multi-counsel collaboration agreements. Thus, the immigration attorney representing the project or the regional center, with client consent, can provide to investor’s counsel submitting the Form I-526 or Form I-829 all of the deal- or project-related documents and data needed to establish eligibility for the particular immigration benefit sought. Moreover, investor’s counsel, likewise with client consent, can and usually does undertake to provide the immigration lawyer representing the project or the regional center with timely notice and copies of all petition filings and any USCIS request for additional evidence, notice of intention to revoke petition approval or final decisions in a particular EB-5 investor’s petition. Similarly, immigration deal counsel or regional center counsel can and should provide the immigrant investor’s counsel with any USCIS actions or correspondence involving regional-center designation or amendment. So why then do immigration counsel wear so many EB-5 hats? Is it some misguided paternalism (the desire to make sure all parts of the process are controlled by a single, control-freak lawyer/strategist)? Is it a belief that the EB-5 project and its attendant investors are best served by the perceived efficiency and cost efficacy of using only one immigration lawyer or firm? Or is it merely bottomed on a rapacious desire to squeeze out the largest dollar value of legal fees from each and every EB-5 deal? I disclaim any clairvoyant ability to read the hearts and minds of my colleagues and thereby discern their underlying motivation for embracing joint client representation. Instead, my purpose in posting is merely to suggest that multi-party immigration representation in EB-5 cases is foolhardy and dangerous. If a deal fails, if EB-5 benefits are not achieved, or if one or more EB-5 investors fail(s) to receive green cards because too few jobs are created, then -- as sure as the night follows the day -- disappointed and disgruntled parties will engage successor counsel to point the finger of blame at whomsoever has pockets that seem deep enough to pay amends and thereby effectuate some form of retributive economic justice. (For more on this topic, check out an article co-authored by securities lawyers, Gregory L. White and Mark Katzoff, and me, "Hot Topics in EB-5 Financings," published in Forming and Operating an EB-5 Regional Center: A Guide for Developers and Business Innovators (ILW, 2014; Eds., L. Batya Schwartz Ehrens and Angelo A. Paparelli). Even if the multiple-fingers-in-multiple-pies immigration lawyer somehow prevails after all the finger-pointing exercises have been resolved, the process of deposition, discovery, settlement or trial will be enervating. So, my esteemed and beloved colleagues, it is folly to think that your artfully crafted disclosures and mutual consents to joint representation will withstand close scrutiny and protect you. Instead, just say no! Don’t ever agree to represent more than a single party (or perhaps at most a class of similarly situated investors) in any multi-party EB-5 transaction, whether it be a pooled investment involving direct job creation, or a syndicated investment made through a regional center. In my own case, the need for blissful sleep (and retention of my bar license) compel me to choose sides. I shall only represent the project or the regional center in any syndicated investment (prospective client referrals without referral fees paid are gladly accepted) and I’ll look to my many talented sisters and brothers at the bar to represent the interests of the investor(s). We can do this together while practicing separately -- that is, by each of us undertaking to represent only one party in any pooled EB-5 investment.

According to statistics provided to CNN by the Centers for Disease Control, among professionals in the United States lawyers rank fourth in suicides (exceeded in misery only by dentists, pharmacists and physicians). Lawyers are also nearly four times more likely to suffer from depression than non-lawyers. Clearly, practicing law is never a 9-to-5 job. Being a lawyer is a high-stress, plummeting-prestige profession—the work is demanding, the economics of the profession are increasingly challenging, and in the views of some, the psychic or status rewards of working as a lawyer rank below nail technician. Far be it from us to suggest that immigration lawyers are immune to the effects of such stress. But among the countless lawyers we know in dozens of different specialties, we think it is fair to say that the immigration lawyers are the happiest. Why? The stress in most lawyers’ lives is caused primarily, we believe, by a few key factors. First, the American legal system is deliberately adversarial. Our adversarial system of law is meant to be fairer than the inquisitorial approach used in many civil law countries by allowing each side in a dispute to zealously defend its position before an impartial arbiter (judge or jury). But the pressures of such a system can take a toll on the advocates—the lawyers—who work within it. In fact, lawyers have been compared to soldiers in this regard: “Both lead physically tough lifestyles: long hours, separated from family life and both are sent to fight other people’s conflicts, no questions asked.” The qualities that can make for a good lawyer—intelligence, diligence, perfectionism, competitiveness, being hard-working and achievement-oriented—can also create the isolation, panic and anxiety that often lead to depression. Second, contrary to how the life of a lawyer is depicted on television or in themovies, much of what lawyers actually do on a day-to-day basis can be mind-numbingly boring. Think document review, drafting boilerplate contracts, performing endless legal research, completing innumerable government forms (especially in fields like tax and immigration), and preparing for trial or finishing a brief late into too many nights. Not really anyone’s idea of fun. Of more immediate concern to members of the legal profession nowadays are the financial pressures presented by a changing economy, and the fear that lawyers will be replaced by non-lawyers and by the increasing use of technology. In tough economic times, corporate and individual clients alike are seeking more for less—more and speedier legal services for less money. A related pressure flows from what Professor Richard Susskind argues in his book, Tomorrow's Lawyers: An Introduction to Your Future, is the inevitable liberalization of legal services, whereby non-lawyers are permitted to provide services traditionally considered to constitute the practice of law. This is already the case in many other countries, and in the United States is institutionalized in immigration law practice, where certain non-lawyers accredited by the federal Board of Immigration Appeals are allowed to represent immigrants in removal proceedings or in administrative matters before the Department of Homeland Security. As discussed at length in a recent article in The Economist, whereas automation in the world’s advanced economies in the 20th century served mostly to replace workers with machines in the manufacturing sector, technology in the 21st century is automating “brain-work,” including some of the work typically performed by white-collar professionals such as accountants and lawyers. This type of disruptive economic growth will inevitably have a significant impact on the practice of law. Indeed, Susskind’s more sobering prediction is that the future of law will be “a world of virtual courts, Internet-based global legal businesses, online document production, commoditized service, legal process outsourcing, and web-based simulated practice.” That’s enough to drive any lawyer to drink. So why do we think immigration lawyers are different? Notwithstanding the innovative use of technology to simplify and automate many of the more mundane aspects of law practice, including gathering information, tracking deadlines and completing forms (of which our firms, Fragomen and Seyfarth Shaw, are leading examples in the world of immigration law), immigration practice fundamentally revolves around people. Whether you’re helping a Fortune 500 company manage its global mobility program, defending an individual against removal (deportation) in Immigration Court, or helping a U.S. citizen’s foreign spouse apply for permanent residence, as an immigration lawyer you are ultimately assisting people through a major personal transition that will profoundly transform their lives and the lives of their families. Economic pressures and technological development are moving us inevitably toward a more data-driven, data-input system of immigration benefits procurement, and the trend toward reliance on technology carries with it the threat of dehumanizing both the practice of law as a profession and the truly intimate odyssey for the immigrants we represent. But while the CDC has not provided statistics about the mental health of immigration lawyers in particular, it is clear to us that immigration lawyers labor in the finest tradition of law as a “helping profession.” This ability to help others, without a true adversary such as a litigation opponent staying up all night devising ways to destroy opposing counsel—not just a government lawyer with an impossible case load who often has too little time for assertive advocacy—distinguishes immigration lawyers from the suicide-prone attorneys described in the CNN article. To be sure, we’ve seen immigration lawyers react poorly to the stress of the practice, especially those of the people-pleaser sort who have a hard time communicating bad news to clients, and just want always to say yes. But they are by far a speck in the immigration-lawyer universe. As immigration lawyers, we have expertise in a complicated area of law that we apply in the service of our clients. For those of us who work in the private sector, we have skills that are also uniquely valuable to an underserved population of indigent immigrants for whom there is a severe shortage of qualified non-profit and pro bono legal counsel. Attorneys who do not specialize in immigration law also have skills that are easily transferable to representing immigrants facing deportation or applying for asylum or seeking various types of lawful immigration status. In one of Careen’s first pro bono cases as a young lawyer—an asylum matter in Immigration Court—the case concluded with Respondent’s counsel, the client and the judge choking back tears. Angelo’s pro bono cases have also included life-changing experiences, for Angelo and his clients, as he has blogged, here, here and here. So, feeling stressed out or depressed? Take a sip of the helping-profession elixir that brought many of us into law in the first place, and take on a pro bono immigration case. Whether you are already an immigration lawyer, or a lawyer in another specialty looking for meaning amid the stress and frustrations of law practice, we promise you that in addition to helping a person in need and fulfilling the highest ethical calling of the legal profession, the experience will leave you feeling fulfilled beyond all expectations. And it is far superior to talk therapy and antidepressants.

The power of online and social media to whip up a frenzy of vituperation in the immigration ecosystem surfaced vividly once again this week. The first trigger event was action by nine Dreamers -- six who'd been deported to Mexico and three who left the U.S. and entered Mexico willingly. Protesting the Obama Administration's mass deportation and detention policies, the DREAM9, as these youthful activists are called, immediately approached the U.S. border and asked Customs and Border Protection officials to allow them in. The second trigger was an article by a well-regarded immigration lawyer describing the DREAM9 action as a "publicity stunt" and "flippant" behavior, when the focus should be on enacting comprehensive immigration reform. He also expressed doubt that the three Dreamers who left the U.S. would qualify for readmission under the asylum laws or humanitarian parole. All sorts of nastiness ensued. Some protested that the lawyer had no right to criticize since he is not a Dreamer, while others suggested to these critics that the lawyer, as a citizen, has a higher right to speak under the First Amendment than undocumented protesters and their equally paperless supporters. Both sides on this spat are wrong -- the First Amendment applies to everyone in the United States. The DREAM9 have reportedly been denied parole into the United States (the discretionary power of the government to admit individuals on a case by case basis under § 212(d)(5)(A) of the Immigration and Nationality Act for urgent humanitarian reasons or significant public benefit). Shuttled off to the Eloy, AZ detention center as civil detainees, the DREAM9 sit in custody or solitary confinement, while they prepare to request asylum in the United States and participate in a hunger strike to protest detention conditions generally. As this dust-up shows, there have been collateral damage and casualties in this war of words, not the least of which are our nation's deservedly maligned, and mostly misunderstood immigration laws, as well as our tradition of activism and civil disobedience to spur changes in law and policy. The lawyer (whom I respect) is right to consider the fine points of immigration law, but wrong to publicly prejudge the outcome of their requests for asylum and humanitarian parole since he is not privy to the facts. Certainly, a case can be conceived of compelling humanitarian grounds and significant public benefits upon which to grant humanitarian parole or asylum. They have lived, been educated and are like the everyday Americans among whom they grew up. Crime in Mexico, especially kidnappings of wealthy Mexicans or American tourists or those perceived as such have been acknowledged by the U.S. Department of State ("The number of kidnappings and disappearances throughout Mexico is of particular concern. Both local and expatriate communities have been victimized. In addition, local police have been implicated in some of these incidents"). Moreover, throughout American history our immigration laws have reflected the political sentiments of the times -- from the Alien and Sedition Act, the Chinese Exclusion Act, and our modern day Immigration and Nationality Act, a McCarthy-era law focused on preventing Communists from entering the country, to the Cuban Adjustment Act and the Chinese Student Protection Act. Immigration law and politics are inextricably bound, as these Dreamers know well, given the Obama Administration's use of executive power to create the program known as DACA (Deferred Action for Childhood Arrivals) just in time to favorably influence the 2012 presidential election. No less than voting, political protests and civil disobedience put pressure on the system, not just on the President. House leaders Cantor and Ryan have changed their tune to recognize a benefit for Dreamers. They now acknowledge the unfairness of depriving innocent youth who've lived like Americans their whole life a path to legality. It's way too soon to critique the methods used by the DREAM9 and their supporters when immigration policy arguments are in flux. I commend them for their bravery and for their willingness to shed light on the whole rotten detention and removal system that needs to be reformed from its core. Criticizing these kids distracts from the real targets of criticism -- the dysfunctionality of the immigration laws, the prison-industrial complex and the border-focused government-contractor giveaway. Or as another respected immigration lawyer reminded me, Frederick Douglas said:

Let me give you a word of the philosophy of reform. The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.

Much has been written since April 17 when the bipartisan Gang of Eight senators introduced S. 744, a brobdingnagian immigration reform bill that overlays 844 pages of turgid text on top of the already gargantuan and complex Immigration and Nationality Act. The Migration Policy Institute, the National Immigration Law Center, and the American Immigration Lawyers Association (AILA) have each offered a helpful analysis of the bill. This legislative leviathan grew to 867 pages on April 30 with the substitution of a “managers’ amendment” (available here as revised and here as redlined, as well as here with AILA’s redlined section-by-section analysis released on May 1). Although most of the media focus has homed in on border security and the seemingly IED-laden roadway to citizenship for undocumented immigrants, U.S. companies -- especially the General Counsel (GCs) who advise them -- are slated to be on the receiving end of shock and awe if the “Border Security, Economic Opportunity, and Immigration Modernization Act,” or BESSIE MAE, as wags like to call it, ever becomes law. As I explained in a recent article (penned before the managers’ amendment), “Senate Immigration Reform Bill Offers Surprises Galore for Employers,” BESSIE MAE presents American companies with a slew of opportunities and burdens. Consider just a few:

The H-1B visa quota will rise from 65,00 to 110,000, with a phased escalation clause pushing the quota as high as 180,000 per fiscal year, based on employer demand and the unemployment rate for “management, professional and related occupations.” Yet this Faustian gift will cost employers dearly in pre-hiring recruitment, higher filing fees, increased record-keeping, expanded enforcement authority for the Labor Department, and greater potential fines and penalties.

Similarly, managers and executives who may or may not become L-1A intracompany transferees would be allowed to enter the U.S. as business visitors for up to 90 days “to oversee and observe the United States operations of their related companies, . . . [and] [e]stablish strategic objectives when needed,” while “employees of multinational corporations [may] enter . . . to observe the operations of a related United States company and participate in select leadership and development training activities . . .” Yet in return, employers lose the free hand heretofore available to devise creative incentives and bonuses for their inbound expatriate employees who now, like their H-1B brothers and sisters, must be paid the " prevailing wage" under the watchful eyes of the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services.

In like manner, employers would be given immunity (none dare call it "amnesty") if they maintain on their payrolls workers who are undocumented immigrants but who express the intention to apply for the new Registered Provisional Immigrant status. Yet, enrollment in a veritable E-Verify on steroids will become mandatory for all employers, and the Form I-9 (Employment Eligibility Verification) will continue to be required. Worse yet, any new hires who fail to receive confirmation of employment eligibility from E-Verify on the first try must continue to be paid, trained and employed while they pursue a host of new administrative hearing and appeal rights of indeterminate length.

Proactive GCs of corporate America should therefore make sure that their companies are ready for the tsunami of change that will sweep over the enterprise if BESSIE MAE or any equally unreasonable facsimile thereof makes it into the statute books. The old way of managing immigration, as a backwater area of law relegated to Procurement, Recruiting, Human Resources, and Payroll Administration, or -- worse yet -- to foreign nationals seeking work visas who are encouraged or allowed to find a low-cost immigration lawyer to "help" the company, will no longer do. Years back, it was sufficient to consider adopting tips from such articles as, "A Three-Point Immigration Manifesto For Chief Legal Officers And Outside Counsel," and “Global Mobility Management—A Primer for Chief Legal Officers and HR Executives.” Times since then, however, have changed. To best manage risk, exploit opportunities and control costs across the enterprise while squeezing the most value out of limited resources, GCs must adopt a comprehensive plan of immigration portfolio management, whose key components should address a variety of essential concerns:

Immigration-customized technology and tools. Immigration Tech tools should include integrated dashboards (developed, prepared and maintained by external immigration counsel and a client-dedicated project management expert at the law firm) with "Single Sign-On" capability and screen views customized to the specific but differing needs of in-house counsel, and all other essential stakeholders within the enterprise. Access would therefore be instantly available to:

an online collaboration tool using secure FTP extranet technology to exchange and logically organize immigration work product, thereby dispensing with the need to search for on-the-fly emails.

a robust immigration case management system listing case status and key expiration dates for all employees on work visas or pursuing green cards,

an "E-Room" library that houses documents which FDNS or other immigration enforcement personnel might demand to see on short notice such as H-1B public access folders, individual and multi-slot Labor Condition Applications, petitions and applications submitted to immigration agencies, recruiting and advertising materials required for immigrant and nonimmigrant work visa eligibility, vendor agreements with IT and business consulting firms that employ their own foreign workers onsite at company locations, and posting and nondisplacement attestations, and

a consulting hotline and an online consulting log which serves as a knowledge-management repository for all responses to varying fact patterns, FAQs, memorandums and other oral or written guidance provided to the corporate client over time, with links to the contact information of the lawyer providing the guidance so that there is easy followup with a subject matter expert who can provide any new updates or more nuanced responses.

Key Immigration Performance Indicators. Metrics would be based on real-time data derived from Human Resource Information Systems that are linked and updated bi-directionally for use by internal recruiters and hiring personnel, and the business's outside immigration lawyers.

True Partnering with Outside Counsel. "Partnering" is a meaningless buzzword in too many law firms' pitch kits -- one tossed at chief procurement officers who claim to want quality and strategic counsel but are only willing to pay for commoditized immigration legal services offered by the lowest bidder. Real partnering looks more like this:

It begins with a convergence process in which only one or at most two firms are selected after a carefully conceived request-for-proposal process is concluded, a process in which immigration lawyers come into corporate headquarters not to brag about their talents, but instead model what it would be like to work side-by-side with them to achieve the company's business mission while minimizing risks and controlling wasteful practices.

The chosen law firm(s) would invest time, money and resources into a long-term relationship, offering all of the integrated legal services required in the immigration arena -- not just Johnny and Jane One-Note visa and green card services, but scalable immigration benefits-procurement assistance, interdisciplinary immigration-compliance defense, federal court litigation and appellate law services, tax advice, U.S. and international employment law representation and export control law guidance -- all under one roof.

Immigration counsel would meet regularly and ad hoc as needed to evaluate the final immigration reform legislation, advocate for employer-friendly rulemaking, and map out action plans and task owners so that the enterprise is poised to pounce upon immigration opportunities with training programs and internal open-house forums for foreign nationals and managers, prepare Congressional outreach and media strategies, and eliminate or minimize old and new compliance risks. Also included in these meetings would be an annual "Client 101" orientation program taught by in-house counsel for the external team of immigration lawyers, paralegals, project managers and administrative staff to learn all about the company and its culture and a periodic Client/Law-Firm Summit.

Immigration counsel would also provide benchmarking opportunities to help develop best practices based on the experience and wisdom of comparable businesses in similar industries and share knowledge and strategic thinking from other industry contacts with in-house counsel.

No longer on hearing the word "immigration" should GCs be made to suffer that all-too-familiar form of queasiness which arises when an "alien" substantive-law problem lands on his or her desk. Inoculation with a healthy dose of immigration portfolio management will provide GCs with immunity from the worst that the likes of BESSIE MAE can try to inflict on them. So there's no reason to toss one's most recent meal. Just take a prescription for immigration portfolio management and contact the most qualified immigration counsel to be found.

I've been a member of many tribes (as I write this I'm recalling my tattered T-shirt from my own and my adult daughter's Indian Princess days, many moons ago [click here to see the shirt]). In the Googlean sense, immigration lawyers likewise have their "circles" (if a noun can become a verb, I guess it can be an adjective as well). We lawyers of the immigration arts congregate privately in many places including local bar associations, on IMMLOG (a practitioners' list serve run by Kevin Dixler) and IMMPROF (a list serve for professors of immigration law, hosted by Hiroshi Motomura), through the American Immigration lawyers Association (the national immigration bar), which has a New Members Division, a group for Senior Lawyers (known as the Silver Foxes, led by Ken Stern), and numerous AILA Interest Groups. There's even "Cool Immigration Lawyers," a private meeting place on Facebook "for cool immigration attorneys who think it is awesome to help people and to insist on justice for everyone." My prime immigration tribe is the Alliance of Business Immigration Lawyers (ABIL). It's expanded wonderfully over the last 10+ years since I founded it; but it still performs its original mission very well. ABIL was established on the principle of "competitive empathy," the notion that although we operate in separate law firms, "none of us is as smart as all of us." I liken it to a 12-Step Group for battle-weary immigration practitioners who acknowledge we're "powerless" over the ever-crashing waves of change washing over our chosen field of law. The most recent tsunami -- the Obama Administration's program of immigration enforcement abatement, known as DACA (Deferred Action for Childhood Arrivals) -- has flooded the immigration tribal counsel with challenges and questions since August 15 when U.S. Citizenship and Immigration Services (USCIS) released DACA forms, instructions and FAQs. These include Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, Form I-765WS, a work-need worksheet, and a DACA web page with FAQ. The challenges include concerns among DREAMers and immigration community-based organizations that lawyers may price-gouge to handle DACA cases, reflected recently by perhaps the most-famous DREAMer, Jose Antonio Vargas, who tweeted from @Joseiswriting on August 16: "I try to be positive, but there is a special place in hell for lawyers who take advantage of #DACA by overcharging, etc." (I tweeted back to Jose, who is my client: "[Jose]: Please don't jump to conclusions. You need to know the facts of the case to know if the fee is fair or foul." He responded by kindly urging his Twitter followers to follow: "@angelopaparelli: a great lawyer who's been advising me and, in turn, keeping me sane. [T]hank you for the help and support!") The flip side of this concern is the difficulty individual immigration lawyers have had setting an ethically proper and reasonable fee in a practice area where fixed, project-based fees are the norm. Outside observers without an institutional history of how immigration-benefits programs have been (mis)managed might naïvely assume that the task must not be too complex, just three forms, the I-821D, the work permit application and the corresponding worksheet to show economic need, supported by written proof of a few "simple" facts (entry to the U.S. before age 15, five-years of continuous presence as of June 15, 2012, presence in the country on that day, no older than 30, and no serious criminal history.) They would be mistaken. USCIS knows that Congress, the Media, the Presidential campaigns, and the pro- and anti-immigration interest groups will be watching closely to see whether the agency can handle the estimated 1.7 million youth potentially eligible for DACA, whether fraud will infect the program or be minimized, whether the agency will act with humanitarian compassion under law or ICE-like negativity in exercising prosecutorial discretion, and whether employers who help a DREAMer acknowledge physical presence and past or current employment in the U.S. will face investigation and enforcement actions by USCIS's Fraud Detection and National Security Directorate (FDNS) or by ICE. The immigration bar, electronically-transmitting the 21st Century equivalent of tribal smoke signals over these last frenetic days, knows that immigration confusion and complexity will flourish like a Chia pet on growth hormones as USCIS's implementation of DACA unfolds. Witness the many unanswered issues and concerns that DACA has generated as reflected in the notes of the USCIS's DACA Public Engagement on August 14, provided courtesy of Sally Kinoshita, an immigration lawyer and Deputy Director at the Immigrant Legal Resource Center (ILRC), the ILRC's DACA Criminal Bars Chart, and postings of the American Immigration Council by its Legal Action Center (DACA Practice Advisory) and Immigration Policy Center (Deferred Action for Childhood Arrivals: A Q&A Guide [Updated]). Even the most mundane issues involve significant costs that clients or lawyers must bear unless answered soon. Attorney Marty Rosenbluth, Executive Director at the North Carolina Immigrant Rights Project asks of Facebook's "Cool Immigration Lawyers":

I know that some questions USCIS/DHS/ICE will answer with "it depends on the totality of the circumstances", but I think we can get a clear answer to a few questions before we start filing hundreds of these things. If we go through all the trouble of tabbing the appendices, are they going to be stripped off so the documents can be scanned before the person who will be deciding actually reads it? We thought it would make the [applications] easy to follow, but if they are just going to be stripped off beforehand we won't bother. Also, we were thinking of using color coding, but if the scans are [black & white] there is no point there either.

* * *

Thank goodness for immigration-lawyer tribes. Besides "help[ing] people and . . . insist[ing] on justice for everyone," while trying to keep our staffs paid and doors open, we also dedicate our time and talent to advise and represent DREAMers as they wade through DACA's treacherous waters. Were it not for these collegial tribes, many of us (probably myself included) would have thrown in the towel years ago, mirroring the fate of Murray Burns, the protagonist in Herb Gardner's A Thousand Clowns. Played by Jason Robards in the classic 1965 film, Murray explains why he finally had had enough and quit his job as TV personality, Chuckles the Clown. While ordering a martini one evening after work, he was asked by the bartender if he wanted an onion or olive with it. Murray responds: "Gosh and golly, you betcha!" We are not clownish robots with pens and swords. Our immigration tribes help remind us of who we are and why we do what we do.

My last blog post, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman. Gary took me to task for my "use of the Holocaust as a standard of comparison" to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree:

I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different. The historian in me. I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.

I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA's Indian Guides. No offense is intended; only admiration for the Indian nations' wholesome, natural and eco-friendly way of living on the earth.

Ever since I first sat in a Los Angeles movie theatre watching Grand Canyon, Lawrence Kasdan's 1991 film, the only movie, to my knowledge, whose protagonist is an immigration lawyer, I knew I would mouth to myself, repeatedly over the ensuing years, one of its memorable lines. The main character, Mac (played by Kevin Kline), practices a rather pathetic and half-hearted version of deportation defense in the City of Angels. Consumed by existential angst and a career going nowhere, Mac sits in his law office and screams to his secretary and to himself: "I hate [bleep]ing immigration law!" Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices -- proxies for one client's or another's American Dream about to take wing.

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission.

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression. To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business. Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven. Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.

Manage client expectations. RFEs, if unanticipated, often can destroy relationships with existing and new clients. Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE . The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence. You, client, have a business decision to make, and within reason, I will abide by your instructions. Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek. We may or may not receive an RFE under either strategy. The government (acting godlike, but without the grace) behaves in mysterious ways. Your best chance of avoiding an RFE is by presenting as much evidence as possible."

Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way. The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility. It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant. The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts. Here is a simple rule for staying out of legal trouble and RFE hell: Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.

Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader. Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader. Text alone, however eloquently presented, may fail to make the desired impact. Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission. The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.

Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human. While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition. If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead. Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community. Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.

Garner a reputation for zealous representation under law. Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way. Don't just give up, if the RFE or a denial is issued. Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE. After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers.

Distinguish boilerplate from customize text. Every RFE contains a mix of both. Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case. If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response.

Note whether the RFEcontains assertions about legal requirements. If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up. If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.

Respond fully with fresh evidence. While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence. The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States. Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence. Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world. Whatever the source, protect the administrative record with compelling evidence.

Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority. Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, resort to media focus (either traditional journalists or others proficient in social media) may be justified. These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued.

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon. Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale." By employing the suggestions in this article, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled._

What did USCIS do to improve access to lawyers? Did it instruct the agency's Fraud Detection and National Security Directorate that no site visits could be conducted without prior notice to the parties' attorneys of record? Did it decide that FDNS could not interrogate employers and foreign workers unless their counsel were present? Did the agency instruct USCIS personnel stationed abroad at American embassies and consulates that lawyers must be allowed to accompany clients into the interrogation rooms?

Swept up by curiosity, I skipped the press release and clicked on the hyperlink to the USCIS interim policy guidance pronouncing in red ink: "This memo is in effect until further notice." As I read through the guidance, disappointment set in and two thoughts entered my mind:

The American Immigration Council (AIC) must have come down with a mild case of Stockholm Syndrome. Apparently the Council had become so captivated by USCIS that this highly regarded nonprofit seems to have mistaken "a lack of abuse . . . for an act of kindness."

USCIS has assumed the role of Senator Daniel Inouye during the Iran-Contra hearings when attorney Brendan Sullivan famously replied to the senator's complaints about the lawyer's interjections, "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job."

The AIC's misleading headline notwithstanding, the "new" USCIS policy guidance does not really break new ground in its dealings with lawyers. While the policy -- to be sure -- quite laudably clarifies and limits the roles of non-lawyer representatives and attorneys admitted in foreign countries, and makes sure that notices are sent to both the attorney and the client, the interim guidance fails to "improve" clients' access to members of the bar licensed in any of the 50 states. Indeed, in some respects, it makes matters worse.

The prior policy, reflected in the Adjudicators Field Manual (AFM), provided:

15.8 Role of Attorney or Representative in the Interview Process. Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel:

Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) is part of the record.

The attorney’s role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. . . .

Officers should not engage in personal conversations with attorneys during the course of an interview. (Bolding added.)

The interim policy guidance substituted the foregoing with this new instruction:

The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected. . .

Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.

Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview.

An applicant or the applicant’s attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file. . . .

The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. . . .(Bolding added.)

Note that under the former AFM provision a lawyer "may advise his client(s) on points of law". This express statement of the lawyer's role is inexplicably omitted from the new guidance. Now a lawyer may merely present written evidence,"ask clarifying questions," and "raise an objection on an inappropriate line of questioning."

The new guidance, in my view, offers a powdered-wig view of law and improperly circumscribes the conduct of lawyers. Fortunately, however, the real-world interactions between USCIS examiners and immigration attorneys have not been quite so constrained. Experienced examiners know that a lawyer can help lead to a just outcome in many an immigration case, for example:

when helping to explain why a complex corporate structure involving multiple tiers of entities overseas and in the U.S. qualifies for EB1-3 Multinational Executive or Manager immigrant visa classification;

when showing in a family-based immigration case that a divorce would be recognized under foreign law such as (heaven-forbid) Sharia law;

when demonstrating that an EB-5 immigrant investor satisfies the requirement that he or she be engaged in the direct management of the enterprise merely by serving in the role of limited partner under 8 CFR § 204.6(j)(5)(iii).

The new USCIS guidance urges examiners to "remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable." I maintain that an adjudicator is equally duty-bound to apply the law to the facts, and that a lawyer should be expressly allowed under revised policy guidance to play a role in helping the examiner fulfill this duty.

The USCIS should also expand its guidance by taking into account the suggestion of the Alliance of Business Immigration Lawyers in a white paper presented to the agency:

All Interested Parties Must be Allowed a Right of Meaningful Participation in Requests for Immigration Benefits and in Administrative Appeals.

Under current law and regulations, many parties with a tangible legal interest in the outcome of an immigration-benefits request have no right to make an appearance in person or through legal counsel before USCIS.

As immigration law has evolved, legislation and regulations have increased the actual and potential conflicts of interests. As a result, situations increasingly arise where a variety of individuals and entities have distinct legal interests to protect in an immigration matter. These parties in interest can include, among others:

beneficiaries of an I-129 or an I-140 petition (who currently cannot get a copy of the petition to show that they were in compliance of the law, to qualify under the 245(i) grandfathering provisions, or to port to an approved Employment based petition);

Regional Centers in EB-5 immigrant investor petitions, which cannot enter appearances to demonstrate that their investments qualify under the initial EB-5 determination or the removal of conditions phase, even though an RFE might challenge the Regional Center’s investment or its job-creation calculation;

the corporate employer in the success of its foreign workers’ I-485 adjustment of status cases or the workers’ family members’ applications for extension or change of status, as the employer may be injured by loss of the employee’s services; and

the guardian of a child’s interest or an estranged spouse in a derivate employment-based immigration matter involving the principal applicant.

The G-28 — indeed, the USCIS’s regulations and the [Immigration and Nationality Act] — should be modified to recognize and allow separate legal representation of each of the parties with legitimate legal interests to protect. Failure to do so prevents USCIS from getting all the facts and considering all the legal issues raised in immigration matters. That USCIS’s current technology infrastructure lacks the capacity to provide notices, decisions and correspondence to multiple parties in interest and their respective attorneys is no reason to deny procedural and substantive due process.

As a starting point toward ensuring "meaningful participation in requests for immigration benefits," the USCIS should proclaim that lawyers are not potted plants to be carried into interview rooms by their clients.

Rather, the agency in revised guidance should affirm that immigration lawyers, as officers of the court, with a duty of integrity and honesty in USCIS proceedings, are essential participants in assuring that the rule of law is observed and justice done whenever petitioners and applicants request immigration benefits._